The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1887-05-02

down was whether IL was Legitimate AOA
journalist to publish correct abstract of
a matter pending judgment.
He then proceeded to cite English and
American authorities to show that any
thing published by newspaper calculated
to prejudice the minds of the public upon
a mstter pending in judgment must be re-
garded as contempt, and he claimed that
the inevitable tendency of the ADVERTISERS
publication was to create such a prejudice.
Bills in equity flied nthat Court were upon
affidavit, and where they are published
upon the authority and the cath of respect
able parties, then it must follow that the
people will have their minds prejudiced.
AS Vice Chancellor Mailing had suggested,
any persoy might file a petition on purpose
that it might be published in a newspaper.
A person could not legally take revenge
under the name of journalist and butcher
the character of a citizen. To say that
Mr.. Aholo was guilty of the charge i'm
puted to him would be to. prejudice him.
Whether the petition filed against him
were true or false was a question with
which counsel had nothing to do, but the
principle involved applied to every other
person in the community. The next con-
tention contained in the answer denied
that it was intended to prejudice. It had
been repeatedly affirmed in that Court that
denial of intention did not exculpate if
the wrong were done. The answer further
set forth that the document was supplied
by one of the Clerks at the Supreme Court,
upon application by reporter in the or
IL, Of
justification in that. The clerk was not
authorized to supply it, neither was the
respondent authorized to publish it. The
next contention of the answer was that it
was published merely as matter of news,
in which the public was interested. 1t
might be that the public was interested,
but judge by the tone of the press of late
years-he did not refer to the local press
so much as to that of England and
America-the public taste was very much
depraved and it might want that kind of
scandal, but to plead that the depraved
public appetite demanded that people
might have this piece of scandaIous news
over their morning coffee, was no justifi-
cation. This popular demand for some
thing scandalOus was not SO imperious a
matter as to cause journalist to entirely
lose sight of his duty. There was no such
imperious necessity resting upon the
shoulders of Mr.. Creighton as to cause
him to do that which would necessarily
destroy the official and private character
of Mr.. 5Aholo. 4 It was eontended lin the
reply that the respondent had been adj
vised that. the document vas upon the
records of the Court, and was therefore
open to the public. It did notfollow, how
ever, that because document was on file
it should be published broadcast. It was
no doubt open to public inspection. Amy
one whose depraved appetite led them to
hunt up this scandal might go to the
record and examine it, but, that did not
justify publication. The answer also de-
clared that the defendant in publishing
this did not want to create prejudice.
The question of intention had already
been disposed of. The intention is to be
judged by the act 1t was declared in the
answer that the abstract was published in
good faith and concerned the official acts
of a public officer. of which the public had
a right to be informed. The
mere fact that the man was a
public official did not withdraw
from him the protection of the law. A
newspaper could properly criticise his fit
ness for office or his official doings, but it
had not the right to publish against him
scandalous charges pending in judgment
until their truth or falsity had been estab-
lished by the Court. 1t might possibly be
claimed that Mr.. Aholo's proper course
would have been a suit for libel. That was
not correct. Even according to the law of
libel the publication of charge like this
could not be held to be privileged. That
which was not privileged with regard to
the law of Hbel'was not privileged with re-
gard to the law of contempt. Mr.. Aholo
had his choice of remedies. There was
nothing in this proceeding to bar him from
bringing an action for libel, or the Crown
to proceed erin1inally against Mr.. Creigh-
ton for this publication. People before
the Court were under the especial protec-
ton of the Court Mr. Aholo was under
the especial protection of that Court, and
should not be attacked until he had an OPP
portunity for defense. Counsel quoted
number of precedents in support of his
position, going back to Lord Erskine's
day, and continuing, SAID that did not.
plead that the publication would make
any difference to the decision of the Court
in the application, pending, but the princi-.
pie he sought to establish was this: that
anything having tendency to prejudice
the minds of the public was constructive
contempt. That was distinctly held in
several cases cited. 1t was found from the
various authorities that the opinions of the
Judges, with one exception, were that the
publication was no less prejudicial simply
because the case was coming before one
who was presumed to be above any such
Influence. one authority said, A'The
Court will of course endeavor to be unin-
fluenced, but the disturbing element has
been thrown, in, which it is the wise policy
of the law to exclude. The parties have
right to come into Court without any pre-
yious prejudice against them" It had
been the constant practice here and in
America for the newspapers to publish &C
counts of legal proceedings exempt from
restriction in great degree, and conse-
quently they had come in time to regard
liberty as. license, whereas the difference
WAC very marlrod A GREAT deal of cav,fr